Meh, I’ve already done one today. Why not two?
Actually, let me tell you why first. Because saying it’s all about love and freedom is oversimplification. Let’s talk about what the DOMA and Prop 8 decisions really say and really mean.
First: DOMA, aka the Defense of Marriage Act, aka US v. Windsor. The story behind this is about Edith Windsor and Thea Spyer, two women from New York who were married in Canada. When Spyer died, Windsor tried to get the surviving spouse tax exemption but was denied under DOMA. So she sued citing Section 3 of DOMA as unconstitutional.
What does Section 3 say? As for Section 3, it provides a federal definition of marriage between a man and a woman. Meaning even those who are legally married in their state don’t have their marriages recognized by the federal government, which comes with a variety of implications, particularly when it comes to tax law.
There are some rather tricky issues of Standing in the DOMA case, since the federal government decided not to defend the case. Standing basically means if you have a right to bring a case in the first place. A different group came in seeking to defend DOMA and the Court in this case allowed them to proceed, in large part because not doing so would bring a huge amount of potential litigation on this same issue in federal courts all over the country. We’ll be talking about Standing a lot more in the Prop 8 case…
Back to DOMA.
So what makes the case that DOMA violates equal protection and due process?
- A big thing that comes into play here is state vs. federal powers, like I mentioned in the Voting Rights post. The federal government has lots of power over things like taxes, that inevitably involve some decisions about families. But states have the stronger power to make decisions about families since it’s not something the federal government has direct power over through the Constitution. So it’s not really a situation where the Supremacy Clause is really going to protect the feds. This is much more of a State powered issue than a federal one. The fact that DOMA gets in the states’ business does not help it with the Court.
- DOMA also doesn’t exactly make any real effort to avoid being discriminatory. It has plain language trying to encourage and discourage the way states behave about something that isn’t in the federal powers. It also uses words like “moral,” which doesn’t exactly help it in the legal department.
- It creates a system where some marriage are legitimate in one way (state rules) and illegitimate in another (federal rules). This creates a second-class marriage group. That doesn’t sound very equal, does it?
- It has a sweeping set of effects, everything from taxes to Social Security benefits to criminal law enforcement. In all these ways, same-sex couples have additional burdens that heterosexual couples do not.
Those are the major tenets of the Court’s ruling finding DOMA violates equal protection and due process.
Keep in mind: DOMA is not completely unconstitutional, just Section 3. There’s still Section 2, which isn’t at issue under this ruling. Section 2 allows states to refuse to recognize same-sex marriages from other states. I really wouldn’t be surprised to see that come up, since the Constitution requires states to give Full Faith and Credit to what other states did when someone moves. That’s why heterosexual couples don’t have to get married again if you move from Missouri to Illinois and why you don’t have to take a new driver’s test when you get a license in a new state.
And now let’s hit the Prop 8 ruling, shall we?
To start, a history refresher. Proposition 8 was a ballot initiative in California that would define marriage as between a man and a woman. After it was enacted, it was challenged in court by several same-sex couples. The officials named as defendants, including the governor and many local officials in charge of enforcing the law, refused to defend it. A group of Prop 8’s proponents stepped in and asked to intervene to defend it and they were allowed to do that by the lower court. The lower court had a bench trial (judge, no jury) and found Prop 8 unconstitutional. After that, the group of proponents appealed to the 9th Circuit. This is where it gets complicated.
The 9th Circuit sent the question to the California Supreme Court of whether a group of proponents of a law could appeal its validity. Why did they do that? Basically the 9th Circuit asked California’s Courts if it was okay under California law for the proponents of a law to represent it when officials would not. And California said Yes.
So 9th circuit stood by the lower court decision and once again the proponents appealed, this time to the Supreme Court.
So the first issue the Court looked at was whether the proponents had any right to be there. You see, you can’t just go to court about something unless you have “standing,” meaning a kind of grievance. And not just a general one. You can’t just sue because you dislike a law. (For example, to use our Voting Rights Act talk, I can’t sue about a voting law if I am not affected by it even if other people are. I have to be the one hurt in some way.)
The Court was not terribly convinced that the Prop 8 proponents fit the bill. Once they handed their proposition to the state and it was voted on, they had no ownership of it or interest in it. It was the state’s, not theirs. And as none of them are same-sex couples, whether Prop 8 is up or down will not have a direct impact on them.
Even though California’s Supreme Court gave them permission to stand in and argue a case, the Supreme Court says that’s not enough to make them officials or stand-ins for officials. And it’s pretty hard core on that. (For example, it cites a case where a state didn’t pursue a defense but the President and Speaker of the State Legislature did. The Court said that was cool, but when they were no longer in office it said they were no longer officials of the State and couldn’t do that anymore.) The Court says, “Sorry, guys. The Court saying you can do it still isn’t official authorization.” Federal court, federal rules. End of story.
So yeah, the Prop 8 decision had NOTHING to do with marriage. Not a thing. It basically said you can’t appeal, so the lower decision stands. As for what California is going to do about that, the lower court ruling told the California officials to quit enforcing Prop 8 so you can expect same-sex marriages to begin again in California.
A final recap? DOMA’s Section 3 that sets a federal definition for marriage has been found unconstitutional. The lower court’s ruling finding Prop 8 unconstitutional remains standing because the Supreme Court refused to hear the issue.
As for what DIDN’T happen: state laws that restrict marriage definitions are still left standing. DOMA was a narrow federal-only ruling and the Prop 8 decision did not get into any marriage issues at all. DOMA Section 2 that allows states to refuse to recognize same-sex marriages from other states also stands.
And what about standing? Well, it’s hard to compare the two opinions. They’re using two separate rules of reasoning, one uses an exception to standing and one doesn’t. And they’re written by two different sets of justices without really referring to one another. So yeah, that’s one that sucks for the textbook writers…
So are we all cool then? This is not exactly a we-love-gay-day at the Supreme Court, just like yesterday wasn’t a we-hate-minorities-day. The decision of Equal Protection for DOMA is a pretty big deal, but it also relies a lot on more procedural issues. It’s not exactly a Separate isn’t Equal kind of decision, but it’s certainly more than a lot of people expected.